A libel suit by the
manufacturer of the Barbie doll against a prominent law firm has been
reinstated by this district’s Court of Appeal, which said the suit should not
have been dismissed under the anti-SLAPP law.

Div. Two ruled Thursday
that Mattel, Inc. will probably prevail on at least one of its claims against
Luce, Forward, Hamilton & Scripps and former partner James B. Hicks. Hicks
has since moved to Ervin, Cohen & Jessup.

The toy maker claims
that it was defamed by Hicks in an article in the firm’s newsletter and on a
tabloid television program, in connection with an intellectual property suit.
Todd concluded that the comments on the television program, “EXTRA,” were
covered by the statutory fair reportage privilege but that similar statements
in the newsletter were not.

Hicks and Luce Forward
represented Collegiate Doll Company and its principals, Harry and Claudene
Christian, in three intellectual property suits with Mattel. Claudene Christian
designed a cheerleader doll while a student at USC in 1990, then formed
Collegiate, along with her father, to design and market similar dolls across
the country.

The first suit was
settled with Collegiate agreeing to pay Mattel $100,000 and change its
marketing process. The second suit, brought by Harry Christian—who did not sign
the first settlement agreement—resulted in a summary judgment for Mattel and
$500,000 in sanctions against Hicks for bringing what U.S. District Judge Nora
Manella ruled was a “sham” suit that lacked factual foundation.

Suit Settled

The third suit was
settled after the Christians substituted themselves in pro per. As part of that
settlement, Collegiate assigned the rights to the original doll face and head
designed by Claudene Christian to Mattel.

The settlement did not
resolve Mattel’s defamation suit against Luce Forward, Hicks, Collegiate, and
the Christians, however.

The defamation complaint
was filed after Hicks and Claudene Christian appeared on “EXTRA.” Mattel
charged that the defendants had misrepresented the nature of the prior
proceedings, including a dispute arising after U.S. Customs seized a shipment
of Collegiate dolls pending a determination as to whether they infringed
Mattel’s copyrights.

The toy maker also
claims that Hicks and the Christians falsely accused it of trying to drive
Collegiate out of business, in part because it planned to market its own
“University Barbie.”

Los Angeles Superior
Court Judge Mel Red Recana granted a special motion by Hicks and Luce Forward
to strike under Code of Civil Procedure Sec. 425.16. The statute provides that
when a defendant shows that a lawsuit regarding a public issue threatens its
rights of free speech and to petition, it is entitled to have the suit stricken
and to recover attorney fees unless the plaintiff can demonstrate a probability
of prevailing on the merits.

Todd, writing for the
Court of Appeal, said the motion should have been denied.

Substantial Evidence

There was, the justice
said, substantial evidence that Hicks falsely accused Mattel of a “ruthless”
effort to drive the much smaller company out of business. In fact, Todd said,
Mattel had consistently agreed that Collegiate could market its dolls so long
as it did so in a way that would prevent confusion that might cause consumers
to think they were part of, or related to, the Barbie line.

There was also, the
justice said, substantial proof that Hicks’ accusation regarding the
“University Barbie” and his claim that Mattel agreed to dismiss all of its
claims against Collegiate a month before the first suit would have gone to
trial—implying that Mattel recognized its infringement claims to be
meritless—were false.

“Although the resolution
of the lawsuit was by settlement, it cannot reasonably be disputed that the
conclusion of the lawsuit was in Mattel’s favor and not CDC’s, as [Hicks’]
statement implies,” Todd said.

The justice went on to
reject the contention that the statements were privileged under Civil Code Sec.
47(b) as a “fair and true report” of a judicial proceeding.

The privilege, she said,
applies only if the defendant is reporting for or to a “public journal.” While
EXTRA qualifies, she said, the privilege doesn’t apply to the newsletter
article because Hicks is an attorney, not a journalist, and the newsletter is
not a public journal.

While the newsletter—and
the firm’s website, on which the article also appeared—are available to the
general public, Todd reasoned, “their obvious purpose was not to inform the
public in a fair and true manner about its government, but to advertise the
firm’s litigation prowess for the purpose of improving its image to solicit
business.”

The purpose of the
privilege, the jurist elaborated, is to protect the ability of the news media
to fully and accurately report judicial proceedings. Applying it to a law
firm’s “slanted” account “would be a travesty,” she said.